Tips to Avoid CEQA/NEPA Meetings with Your Attorney

CEQA = California Environmental Quality Act NEPA = National Environmental Policy Act

Presented By:

 Nicole Hoeksma Gordon, Partner, Sohagi Law Group Michael Haberkorn, Partner, Gatzke Dillon & Ballance LLP Collette Morse, AICP, Vice President, RBF Consulting David Snow, AICP, Richards Watson Gershon Susan Tebo, Principal, Impact Sciences Inc.

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Topics To Be Covered

 Sunnyvale  Plastic Bag Regulations  Green House Gas Analysis  Cumulative Analysis: Scope and Geographic Area  Decision Procedures and Others Situations that May Arise  Tips for Preparing CEQA/NEPA Documents  When is a Project Not a “Project”  When is Deferred Mitigation Permissible?

 Document Dumps!

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The Court’s Ruling

 EIR Must Evaluate the Environmental Effects of a Project as Compared to Existing Conditions  Traffic  Air Quality  Noise  Lead Agency Has Certain Discretion in Determining "Existing Conditions," Though Not Later Than Project Approval Date  Consider conditions that have existed over a range of time  Projected conditions at project approval may be more accurate than conditions at start of analysis  Analysis Against Future Conditions "May Be Necessary To An Intelligent Understanding of Project's Impacts Over Time and Full Compliance with CEQA"  Indirect impacts  Cumulative impacts  No project alternative

Implications Of Court’s Ruling

  For Short-Term Development Projects  Likely few, if any  For Long-Term Development Projects, Analyzing the Project Against Existing Conditions Provides Decision Maker With No Realistic Insight Into the Potential Impacts of Such Projects  Potentially overstates impacts by failing to account for planned/funded infrastructure improvements   Potentially understates impacts by failing to account for cumulative traffic growth Potentially understates/overstates impacts by failing to account for changes in land uses, which may alter traffic distribution patterns

Unanswered Question

  Whether the lead agency should base its mitigation measures on impacts under the existing conditions scenario or the future conditions scenario  If under existing conditions scenario, projects first approved in time may be required to mitigate for impacts of subsequently approved projects, which arguably violates CEQA's nexus and proportionality requirements  Existing traffic mitigation mechanisms (e.g., bridge and thoroughfare districts) are based on long-term cumulative analysis

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Potential Alternative Approaches (Not Litigation Tested)

 It Is Absolutely Clear That An Environmental Impact Report (EIR) MUST Contain An Existing Plus Project Analysis To Inform The Public and Decision Maker of the Project's Impacts on the Existing Environment  As EIR Preparers, we sometimes need to do things we may disagree with  For Long-Term Development Projects, Conduct Both Existing Conditions and Future Conditions Analyses and Base Significance Determinations on Future Conditions   Existing plus project impacts are significant and unavoidable; mitigation infeasible Others?

Hope For The Future: Sunnyvale Not The Best “Test Case”

  Limited evidence that Project (Mary Avenue Extension) would not be built until 2020  EIR showed substantial increase in traffic volumes, yet impacts less than significant  No substantial evidence to support statement that 2020 impacts are overstated  CEQA commentators often cited by the courts have criticized the legal basis for the opinion

Save the Plastic Bag Coalition v. City of Manhattan Beach

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Plastic Bag Regulations

 Supreme Court upheld City of Manhattan Beach’s reliance on a negative declaration for an ordinance prohibiting plastic bags  Court held that corporations are subject to the same standing rules as individuals  Thus, also eligible for the public duty exception to the beneficial interest requirement for standing

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Plastic Bag Regulations

 If your agency is similarly situated to Manhattan Beach, a Neg Dec for a similar ordinance would likely be defensible:  Small jurisdiction  Population approximately 33,852  11.2% of the City zoned commercial with only about 217 retail establishments that might use plastic bags

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Plastic Bag Regulations

 “Common Sense in the CEQA domain… is an important consideration at all levels of CEQA review.”  Practical Advice:  Neg Decs likely defensible if agency is similar to Manhattan Beach  Larger jurisdictions with greater use of plastic and paper bags likely would need to be do something more than a Negative Declaration  “Life Cycle” studies not particularly relevant when a project does not entail substantial production or consumption of the product.

GHG Emissions:

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GHGs: Just Like Any Other EIR Section

 Environmental Setting  Regulatory Setting  Thresholds Of Significance  Significance Findings  Project-Specific  Cumulative  Mitigation Measures

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Let Your Local Land Use Jurisdiction Lead The Way

 Climate action plan in place?  Green building ordinance(s) in place?

 Sustainability program(s) in place?

 If so, take “credit” for complying with such standards and tier your environmental analysis, if possible. see State CEQA Guidelines Section 15183.5

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Get An Expert On Board

 In order to ensure that the greenhouse gas (GHG) inventories incorporate all favorable regulatory enactments, thereby reducing the emissions total, find a consultant who is familiar with:  The local jurisdiction's existing regulatory framework   The current federal and state programs, including those for mobile sources and green building The latest-and-greatest modeling programs and tools  Make sure the GHG expert coordinates closely with the other experts, particularly those for air quality, traffic, solid waste, and water supply  Need to make sure data inputs are consistent throughout the CEQA analysis

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Significance Determination Remains A Subject of Agency Discretion

 State CEQA Guidelines Section 15064.4

  Determination calls for "careful judgment" of agency, which has discretion when deciding whether to use a quantitative model/methodology or qualitative analysis/performance based standards Agency should consider the following, among others, when assessing a project's significance:  Whether increase or decrease in emissions, relative to existing conditions   Whether exceedance of an applicable significance threshold Whether compliance with regulations/requirements adopted to implement a statewide, regional, or local plan for the reduction/mitigation of GHGs (continued)

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Significance Determination Remains A Subject of Agency Discretion

 Cited by appellate court in CREED v. City of Chula Vista (June 2011) when upholding lead agency's selected significance criterion  Note: This decision is the subject of pending depublication requests and a petition for review before the California Supreme Court  Recommendation: Monitor the status of this case over the coming months

Significance Criteria – A Moving Target

  State CEQA Guidelines Appendix G?

 Compliance/consistency with Assembly Bill 32’s (AB 32's) reduction mandate?  Other guidance adopted or endorsed by local air district? (continued)

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Significance Criteria – A Moving Target

 State CEQA Guidelines Appendix G?

 Directly or indirectly generate GHGs that significantly impact the environment?  Conflict with an applicable plan, policy, or regulation adopted to reduce GHGs?

 Compliance/consistency with AB 32's reduction mandate?  Approach upheld in CREED v. City of Chula Vista (June 2011) (continued)

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Significance Criteria – A Moving Target

 Other guidance adopted or endorsed by local air district?    Bay Area Air Quality Management District (BAAQMD): Adopted single, numeric criterion for stationary source projects, as well as tiered frameworks for project- and plan-level analysis for land use development that consider plan consistency; single, numeric standards; and per service population metrics San Joaquin Valley Air Pollution Control District (SJVAPCD): Adopted guidance for stationary source and land use development projects that includes a tiered framework based, in part, on the use of best performance standards Sacramento Metropolitan Air Quality Management District (SMAQMD): Adopted guidance for program- and project-level analysis, recommending that thresholds be related to AB 32  (continued) South Coast Air Quality Management District (SCAQMD): Adopted single, numeric criterion for stationary source projects; Draft tiered framework being developed for commercial/residential/mixed-use projects that mimics BAAQMD in many respects

Significance Criteria – A Moving Target

  Note:  Courts are likely to defer to air district standards -- experts in the field  Some air district standards have been developed with jurisdiction-specific input/inventory data (e.g., BAAQMD), so not generally applicable

Where, Oh Where, Should The Baseline Be?

  You must must must quantify existing emissions  You must must must compare post-project emissions with the existing emissions  You may may may also compare post-project emissions with some other metric (e.g., business as usual (BAU)); but, if you do, build your record  Why use “some other metric”?

 No consensus regarding what specific quantity of GHGs is significant   No consensus on thresholds throughout the state CEQA gives lead agencies discretion

Does One Project Really Make

  For some time, most everyone seemed to be in agreement that no one project significantly impacted climate change, rather it is a cumulative epidemic  However, recent whisperings among some lead agencies suggest that we may now have to start taking significance hits at the project level, as well

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What Is Feasible Mitigation For GHGs?

 Answer: Who knows!

 Continuing pressure to install solar and other renewable power sources  Continuing pressure to secure recycled/reclaimed water  Continuing pressure to densify and intensify  CEQA defines feasibility in terms of economic, environmental, legal, social, and technological factors  Prove it up if you believe the recommended mitigation is infeasible  SCOPE v. City of Santa Clarita (June 2011) -- commenters must do more than dump lists of generally applicable measures in the project file  State CEQA Guidelines Section 15126.4(c) -- mitigation could include, among others:  Measures in an existing plan or mitigation program   Reductions through project design features (PDFs) Off-site measures, including offsets   Carbon sequestration measures In the case of a plan, measures to be implemented on a project-by-project basis

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What’s Up With SB 375?

(Still Not Quite Sure …)

 Many metropolitan planning organizations (MPOs) (e.g., San Diego Association of Governments [SANDAG] ; Southern California Association of Governments [SCAG]) are working on Regional Transportation Plan (RTP) updates, which are slated to include the Senate Bill (SB) 375-mandated Sustainable Communities Strategy (SCS)  The SCS will need to demonstrate how the region will meet its California Air Resources Board (CARB)-adopted reduction targets for reducing GHG emissions, by 2020 and 2035, through integrated land use, housing, and transportation planning How does this interplay with CEQA analysis?  CEQA streamlining benefits for projects that are consistent with the SCS (see, e.g., Public Resources Code, Subsection 21155, 21155.1, 21155.2, 21159.28)  Government Code Section 65080(b)(2)(K): “Neither a [SCS] nor an alternative planning strategy regulates the use of land … Nothing in a [SCS] shall be interpreted as superseding the exercise of land use authority of cities and counties within the region … Nothing in this section shall require a city’s or county’s land use policies and regulations, including its general plan, to be consistent with the [RTP] …”  That being said, still likely need to consider the consistency of projects with the RTP/SCS in the EIR

Scope and Geographic Area

Where to Start?

  “I’m going to need a list of cumulative projects” (says the CEQA/NEPA consultant)  What are your next steps?

 Panic?

  Defer to your traffic department?

Provide a list of every project going on in your agency and have neighboring agencies do the same?

 Stay calm and have a productive conversation with your consultant?

   What is the appropriate geographic area for CEQA/NEPA cumulative analysis?

 You’re probably asking yourself is a 1-mile, 3-mile, 5-mile, or 10-mile radius sufficient?

CEQA  State CEQA Guidelines Section 15130 provides parameters when using the “List” or “Projection” approach NEPA   Council on Environmental Quality (CEQ) Regulations Section 1508.7, 1508.25 & 1508.27 define cumulative impact, its scope, and how to determine significance CEQ publication Considering Cumulative Effects Under the National Environmental Policy Act provide guidance   Scope for cumulative effects Methods, techniques, and tools for analyzing cumulative effects

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Cumulative Impacts List Approach

 Identify all past, present, and probable future projects that could contribute to a significant cumulative impacts What’s a probable future project?

    Private projects requiring agency approval Public projects (money has been budgeted or included in a Capital Improvement Program [CIP], General Plan [GP], RTP) Projects included in summary of projections (in GP or other similar plan) Projects anticipated as later phases of previously approved project

Cumulative Impacts List Approach

  Factors to consider  Location of other projects  Jurisdiction of other projects  Types of other projects  Size of other projects

Cumulative Impacts Projection Approach

  Base cumulative impacts on summary of projections:  In adopted local, regional, or statewide plan, or other related planning document  General Plan        Specific Plan Local Coastal Plan Regional Transportation Plan Plan for reduction of greenhouse gas emissions Water/Sewer Master Plan, Sanitation District Master Plan In prior certified/adopted environmental document Reference: State CEQA Guidelines Section 15130(b)(1)(B)

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What is the appropriate scope of analysis for cumulative impacts?

 How far out do you really have to go/analyze?

   Depends upon “List” or “Projection” Approach Depends upon horizon year of adopted plans or models General rule   Include a summary of the expected impacts to be produced by the cumulative projects Include examination of reasonable, feasible options for mitigating or avoiding project’s contribution to cumulative impacts

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Parting Thoughts on Cumulative Impacts

 Key Principles for CEQA & NEPA Projects  Steps for Cumulative Analysis Include past, present, & future actions  Identify significant cumulative impact issues associated with proposed project/proposed action Include all federal, nonfederal, and private actions (as applicable for NEPA or CEQA) Focus on each affected resource, ecosystem, or human community Focus on truly meaningful effects    Establish the geographic scope for analysis Establish the time frame for analysis Identify other actions/projects affecting the resources, ecosystems, or human community

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What’s needed before final project approval?

 CEQA (EIR)  NEPA (EIS) Final EIR, including Draft EIR, comments and responses, and mitigation monitoring program  Final Environmental Impact Statement (EIS), including Draft EIS, with comments and responses Comments and responses mailed out to public agencies 10 days prior to certification of Final EIR  No decision can be made until 30 days after Federal Register notice of availability of Final EIS  Public Hearing Notice CEQA/Public Hearing Notices  Final plan or project plans Statement of Facts and Findings (EIR)  Agency Staff Report Statement of Overriding Considerations (EIR)  Record of Decision Final plan or project plans Staff Report Resolution certifying EIR Resolution approving plan or project      Statement explaining decision Explanation of alternatives considered and those that are environmentally preferable Factors considered by agency in making decision Explanation of which mitigation measures, if any, were adopted; and if mitigation measures were not adopted, why not Mitigation and enforcement program for any adopted mitigation measures

 What’s substantial evidence and how do you get in your agency’s record?

 What it is not substantial evidence      Argument Speculation Unsubstantiated opinion or narrative Erroneous or inaccurate evidence Social or economic impacts that are not impacted by physical impacts on the environment Public Resources Code Sections 21080(d), 21082.2(d); State CEQA Guidelines Section 15064(g)

   What’s substantial evidence and how do you get in your agency’s record?

 What is substantial evidence?

 Relevant information and reasonable inferences to make a fair

argument

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Facts

Reasonable assumptions predicated on facts Expert opinion supported by facts Fair argument regarding conclusion of project’s significant impacts is determined by reviewing whole record before the lead agency “Substantial evidence” for an impact significance determination means enough relevant information and reasonable inferences from that information to make a fair argument to support a conclusion, even though other conclusions might also be reached. Public Resources Code Sections 21080(d), 21082.2(d); State CEQA Guidelines Section 15064(g)

What constitutes

 Environmental documents (Draft, Final, Mitigation Monitoring and Reporting Program [MMRP]) Applications Technical appendices, memoranda, or reports Public comment letters CEQA Notices Staff reports and presentations Commission(s) and Council agendas and minutes Resolutions, Ordinances Documents incorporated by reference Project-related information Formal contracts, invoices Project correspondence Project meeting agenda and minutes Attorney-Client privileged communications (in a separate file!)

    What happens when the agency adopts an alternative in an EIR instead of the proposed project?

 Not common, but it does happen Record will need to show agency’s process to determination selection of an alternative Statement of Facts and Findings will document selection of the alternative and not proposed project Resolution regarding EIR certification will need to state alternative that is being approved

 What if project opponents say there is an “obligation to adopt” a feasible project alternative?

 CEQA does require identification of environmentally superior alternative to project 

CEQA does not mandate lead agency selection/approval of

environmentally superior alternative (State CEQA Guidelines Section 15043)  Lead agency must state specific reasons for not selecting environmental superior alternative or other alternatives in Statement of Facts and Findings (State CEQA Guidelines Section 15091)  Projects with significant unavoidable impacts require Statement of Overriding Considerations (State CEQA Guidelines Section 15093)

 When do you send out a Notice of Determination when you have a zone change or any ordinance for which CEQA was prepared?

 CEQA requires lead agency to file NOD within 5 working days after deciding to carry out or approve the project  Question for the room    After EIR is certified or ND is adopted?

After second reading of ordinance?

CEQA is all about process!

 Differing Opinions  File NOD after EIR certification/ND adoption and first actions/approvals then file a second NOD regarding subsequent actions/approvals Or  File NOD once after second reading of ordinance

NEPA CEQA

When NEPA Applies

When NEPA Applies

When NEPA Applies

Why Draft a Joint Document?

IS/EA

EIR/EA EIR/EIS

Commitment Communication Coordination Collaboration The 4 Cs

Scope of Analysis Baseline

Key Differences

Alternatives Thresholds of Significance Mitigation

Who’s in Control?

Memoranda of Agreement

NEPA Resources and New CEQ Guidance

http://ceq.hss.doe.gov/current_developments/new_ceq_nepa_guidance.html

Draft CEQ Guidance on Climate Change

New CEQ Guidance on Mitigation and Monitoring

New CEQ Guidance on Categorical Exemptions

Save Tara and its Progeny

What is a “Project”?

 “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and that is any of the following: (1) An activity directly undertaken by any public agency including but not limited to public works construction and related activities clearing or grading of land, improvements to existing public structures, enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plans or elements thereof pursuant to Government Code Sections 65100-65700. (2) An activity undertaken by a person which is supported in whole or in part through public agency contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. (3) An activity involving the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. State CEQA Guidelines Section 15378 (a).

What is not a “Project”?

 Project does not include: (1) Proposals for legislation to be enacted by the State Legislature; (2) Continuing administrative or maintenance activities, such as purchases for supplies, personnel related actions, general policy and procedure making (except as they are applied to specific instances covered above); (3) The submittal of proposals to a vote of the people of the state or of a particular community that does not involve a public agency sponsored initiative. (Steinv.City of Santa Monica, (1980) 110 Cal. App. 3d 458;Friends of Sierra Madre v. City of Sierra Madre(2001) 25 Cal.4th 165); (4) The creation of government funding mechanisms or other government fiscal activities, which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment. State CEQA Guidelines Section 15378 (b)

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What is a project approval?

 (a) “Approval” means the decision by a public agency which commits the agency to a definite course of action in regard to a project intended to be carried out by any person. The exact date of approval of any project is a matter determined by each public agency according to its rules, regulations, and ordinances. Legislative action in regard to a project often constitutes approval.

(b) With private projects, approval occurs upon the earliest commitment to issue or the issuance by the public agency of a discretionary contract, grant, subsidy, loan, or other form of financial assistance, lease, permit, license, certificate, or other entitlement for use of the project.

State CEQA Guidelines Section 15352

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Can Projects Be Approved with Condition for future CEQA Compliance?

 A CEQA compliance condition can be a legitimate ingredient in a preliminary public-private agreement for exploration of a proposed project, but if the agreement, viewed in light of all the surrounding

circumstances, commits the public agency as a practical matter to the project, the simple insertion of a CEQA compliance condition will not save the agreement from being considered an approval requiring prior environmental review.

Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 132 (emphasis added)

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Conditional Agreement to sell land for development in conjunction with commitments to the project

by the City (Save Tara)

Decisions on Development Projects Agreement for 60-year obligation to deliver water

to Landfill. (Riverwatch v. Olivenhain MWD)      

Designation of a “preferred” site for CEQA review and land acquisition agreement conditioned on

CEQA compliance (State CEQA Guidelines Section 15004(b)(2)(A).)

Prison Siting Agreement to identify potential

prison locations. (Santee v. San Diego)

Approval of transportation financing plan

(Sustainable Transportation Advocates v. Santa Barbara County Association of Govts)

Approval of agreement / expenditure of funds on

feasibility of planning studies (Public Resources Code Section 21102; California Oak Foundation v. Regents)

Stadium Term Sheet setting forth basic terms, but

not committing to project (Cedar Fair v. Santa Clara)

Approval of Municipal Services Agreement

(Parchester Village Neighborhood Council)

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Stand Tall on Principles v. Shasta Union High Sch. District,

 The appellate court rejected a claim the EIR should have been done before selecting the preferred school site.

the Board's resolutions regarding the site selection did not constitute an ‘approval’ under CEQA because they do not commit the District to a definite course of action since they are expressly made contingent on CEQA compliance. ( 235 Cal.App.3d 772, 1 Cal.Rptr.2d 107 ) Limited to its facts by Save Tara.

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Concerned McCloud Citizens v. McCloud Community Services District (2007)

 district executed an agreement with a commercial spring water bottler for exclusive rights to bottle and sell water from the district's sources, contingent on, among other things:  the district and the bottler completing CEQA during the Contingency Period  the expiration of the applicable CEQA challenge period without any challenge being filed.’ ” 147 Cal.App.4th 181, 188) the Court held no EIR was required before the district executed the contingent bottling agreement.

Concerned McCloud Citizens v. McCloud Community Services District (2007)

   The agreement was subject to several “ ‘ifs,’ ”  “The biggest ‘if’ in the agreement however is if all discretionary permits, expressly defined as including CEQA documentation, review and approvals, along with the final adjudication of any legal challenges based on CEQA, are secured and all environmental, title, physical, water quality and economic aspects of the project are assessed.” ( McCloud, at p. 193, 54 Cal.Rptr.3d 1.) Limited to its facts by Save Tara

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Riverwatch v. Olivenhain Mun. Water District (2009)

 Agreement between the water district (OMWD) and Gregory Canyon Ltd., (GCL) under which the “OMWD agreed to sell to GCL up to 244,000 gallons of recycled water per day for a term of up to 60 years” for use at a landfill owned by GCL.

Agreement provided that it was “ GCL's sole responsibility for complying with CEQA regarding GCL's receipt, use, and transportation of the recycled water it purchases from OMWD pursuant to the Agreement.” Agreement did not mention OMWD's duties, as a responsible agency regarding the Landfill project, to comply with CEQA before approving and committing itself to the water delivery and construction activities provided for in the Agreement.

Agreement invalidated due to failure to comply with CEQA before adoption Riverwatch v. Olivenhain Municipal Water District (2009) 170 Cal.App.4th 1186, 88 Cal.Rptr.3d 625 ( Riverwatch ).

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Cedar Fair, L.P. v. City of Santa Clara (2011)

 City and Stadium agree on term sheet which states:  Stadium shall not proceed unless and until the parties have negotiated, executed and delivered mutually acceptable agreements based upon information produced from the CEQA environmental review process and on other public review and hearing processes and subject to all applicable governmental approvals. The term sheet's signature page states: “By signing below, the Parties evidence their general agreement with the provisions of this Term Sheet and agree to use this Term Sheet as the framework for the good faith negotiations of binding definitive agreements. Any agreements resulting from negotiations

will become effective only if and after such agreement has been considered and approved

by the Agency and the City following conduct of all legally required procedures.” This commitment is unlike the commitment in Save Tara, where the City of West Hollywood contractually bound itself to sell land for private development conditioned upon CEQA compliance, and Riverwatch, where the water district contractually bound itself to deliver water for 60 years.

Cedar Fair, L.P. v. City of Santa Clara 194 Cal.App.4th 1150, 1171, 123 Cal.Rptr.3d 667, 681 - 682 (Cal.App. 6 Dist.,2011)

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City of Santee v. County of San Diego (2010)

 Nothing in this record suggests the siting agreement has from a practical perspective foreclosed consideration of alternatives to any project or mitigation measures for those projects.

 Prison facility siting agreement to consider various alternatives was not a project approval subject to CEQA.

City of Santee v. County of San Diego 186 Cal.App.4th 55, 67-68, 111 Cal.Rptr.3d 47, 55 - 56 (Cal.App. 4 Dist.,2010)

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Parchester Village Neighborhood Council v. City of Richmond (2010)

 Approval of Municipal Services Agreement between City of Richmond and the Scotts Valley Band of Pomo Indians of California (Tribe) did not trigger CEQA Parchester Village Neighborhood Council v. City of Richmond 182 Cal.App.4th 305, 308, 105 Cal.Rptr.3d 736, 738 (Cal.App. 1 Dist.,2010)

 Sustainable Transportation Advocates of Santa Barbara v. Santa Barbara County Ass'n  Measure A:   “Santa Barbara County Road Repair, Traffic Relief, and Transportation Safety Measure,” imposes a retail sales and use tax to fund transportation projects in Santa Barbara County.  Measure A was approved without conducting CEQA review. After approval by the Association of Governments, it was adopted by the voters at the general election on November 4, 2008.  Court found that the funding program is not a project for CEQA purposes if “it is a mechanism for funding proposed projects that may be modified or not implemented depending on a number of factors, including CEQA environmental review.” Sustainable Transportation Advocates of Santa Barbara v. Santa Barbara County Association of Governments 179 Cal.App.4th 113, 115-116, 101 Cal.Rptr.3d 371, 373 (Cal.App. 2 Dist.,2009)

Conclusion

  CEQA was not intended to be only an afterthought to project approval, but neither was it intended to place unneeded obstacles in the path of project formulation and development.

Save Tara v. City of West Hollywood (2008) 45 Cal.4

th , p. 137.

When Is Deferred Mitigation Permissible?

  In those cases in which mitigation for an impact is known to be feasible, but practical considerations prohibit devising such measures early in the process, the agency can commit itself to eventually devising measures that will satisfy specific performance criteria articulated at the time of project approval. Sacramento Old City Association v. City Council (1991) 229 Cal.App.3d 1011, 1028-29

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Examples of Improper Mitigation Deferral

 Future study of hydrology and sewer disposal problems held impermissible deferral. (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 306) Conditioning a permit on "recommendations of a report that had yet to be performed" constituted improper deferral of environmental assessment. (Gentry v. Murrieta (1995) 36 Cal.App.4th 1359, 1396) Deferral is impermissible when the agency "simply requires a project applicant to obtain a biological report and then comply with any recommendations that may be made in the report." (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1275) "Mitigation measure that does no more than require a report be prepared and followed, without setting any standards" found improper deferral. (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 794) Management plan to be prepared by a qualified biologist with only a generalized goal to "maintain the integrity and mosaic of the vernal pool habitat" was deficient. (San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 669-70) Mitigation of project's effects on water levels impermissibly deferred where no specific performance standard set and only effective mitigation alternative had not been studied or examined. (Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1115, 1118-19)

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Examples of Proper Mitigation Deferral

 Deferral of mitigation for parking impacts containing a specific performance criteria which required that "the overall level of parking utilization in the study area should not exceed 90 percent" upheld. (Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1028-29) No improper deferral of mitigation where condition required applicant to submit for approval improvement plans, grading plans, and a final map that would be "subject to a host of specific performance criteria imposed by various ordinances, codes, and standards, as well as other mitigation conditions." (Gentry v. Murrieta (1995) 36 Cal.App.4th 1359, 1395-96) Mitigation requiring landowner, under an adopted conservation plan, to: design modifications to minimize impact to mariposa lily habitat; conduct an evaluation of salvage, restoration, enhancement, management, or other mitigation techniques; provide monitoring and management consistent with conservation plan; and coordinate with US Fish and Wildlife Service (USFWS) and California Department of Fish and Game (CDFG) and obtain USFWS approval, deemed not an improper mitigation deferral. (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1274-76) Mitigation plan requiring preservation or creation of replacement habitat off site in a specific ratio to the habitat lost as a result of the project upheld as proper mitigation. (California Native Plant Society v. City of Ranch Cordova (2009) 172 Cal.App.4th 603, 622-23)

What Constitutes an Adequate Performance Standard?

  California Building Code Compliance?

 Local (City/County) Regulations?

 State/Federal Agency Approval?

 Performance-Based Design Approach?



Communities for a Better Environment v.

City of Richmond (April 2010)

 Mitigation providing that one year after project approval, project proponent shall submit a plan for achieving complete reduction of GHG emissions held impermissible deferral because:     The lead agency delayed making a significance finding until late in the CEQA process; The lead agency divulged little or no information about how it quantified the Project's greenhouse gas emissions; The lead agency offered no assurance that the plan or how the Project's greenhouse gas emissions would be mitigated to a net-zero standard was both feasible and efficacious; and The lead agency created no objective criteria for measuring success CBE v. City of Richmond (April 26, 2010) 184 Cal.App.4th 70, 93



Oakland Heritage Alliance v.

City of Oakland (May 2011)

 Mitigation requiring, before issuance of building permits, the preparation of a site-specific design level geotechnical investigation, which would: (i) comply with all applicable state and local requirements and determine structural design requirements per California Building Code; (ii) require project plans to include all of the mitigations in the site specific investigation; and (iii) require review and approval of all project plans by City staff to insure compliance with the investigation and applicable Code requirements, found to be a proper deferral of mitigation. Oakland Heritage Alliance v. City of Oakland (May 19, 2011) 195 Cal.App.4th 884, 906-912



Bottom Line

 Undertake a complete analysis of the significance of the environmental impact;  Identify a range of potential feasible mitigation measures; and  Articulate specific performance criteria that ensure that adequate mitigation measures will eventually be implemented

 Individuals, Groups, Agencies just not participating throughout the process  Stall tactic to delay decision  Submitting voluminous comments  Does not allow lead agency adequate to respond either in written or verbal form  CREED v. San Diego case – extreme example!



Late Hit Comments/Document Dumps in EIR Process

 What is an agency’s responsibility regarding written and verbal comments?

 The project record must includes responses to the comments  Written responses in Final EIR  Written responses in staff report  Oral responses at public hearings (responses would be memorialized in hearing minutes)

Citizens for Responsible Equitable Environmental Development (CREED) v. San Diego   Project History   1994: City of San Diego certified Final EIR for Precise Plan (664.8-acre mixed use development) 2008: Pardee applies for approval of planned unit development – last planning area to be development (1,578 units)     April 2008: City Water Department prepares WSA for project City planning department prepares an Addendum to Final EIR October 15, 2008: public notice of Addendum to Final EIR issued November 13, 2008: public noticed planning commission hearing    January 20, 2009: public noticed city council hearing January 20, 2009: CREED submits letter to City Clerk and DVD with 4,000 pages of data and documents – requests council not approve project  Did not appear at hearing to offer any elaboration City Council continues hearing to February 17, 2009  CREED also does not appear at hearing to offer any elaboration  City Council certified the addendum to the FEIR and approved the project    June 4, 2009: CREED filed a first amended petition for writ of mandate and complaint against the City March 23, 2010: the court issued a tentative ruling denying CREED's petition. The court determined the City's certification of the addendum to the 1994 FEIR, which incorporated the WSA, was equivalent to approval of the WSA. As to drought and climate change, the court determined CREED failed to exhaust administrative remedies, and alternatively, CREED did not meet its burden of showing changed circumstances, new information, or deleterious environmental effects justifying an SEIR.

May 19, 2011: Appellate Court affirms the Superior Court ruling.

     

Citizens for Responsible Equitable Environmental Development (CREED) v. San Diego (2011)



Good news for the agency and the CEQA project – the Appellate Court ruled CREED failed to exhaust administrative remedies.

DVD contained more than 4000 pages of documents and data. CREED provided no explanation of how the copious materials pertain to proposed project.

A CEQA challenge is not preserved “unless the alleged grounds for noncompliance with [ CEQA] were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing.” ( Pub. Resources Code, Section 21177 , subd. (a).) “Exhaustion of administrative remedies is a jurisdictional prerequisite to maintenance of a CEQA action.” ( Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1199, 22 Cal.Rptr.3d 203 .) CREED cannot claim exhaustion by citing documents buried among thousands of documents on the DVD it submitted to the City clerk before the first CEQA hearing. To satisfy the exhaustion doctrine, an issue must be “fairly presented” to the agency.

CREED did not appear at either CEQA hearing to elaborate on its position. CREED's haphazard approach was to preserve an appeal. “It was never contemplated that a party to an administrative hearing should ... make only a perfunctory or ‘skeleton’ showing in the hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court.”



Citizens for Responsible Equitable Environmental Development (CREED) v. San Diego (2011)

 Key Take-Aways from case  To exhaust administrative remedies, the objections “must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.”  The petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level.

CREED v. City of San Diego 196 Cal.App.4th 515, 2011 (Cal.App. 4 Dist.)

Nicole Hoeksma Gordon, Partner, Sohagi Law Group Michael Haberkorn, Partner, Gatzke Dillon & Ballance LLP Collette Morse, AICP, Vice-President, RBF Consulting David Snow, AICP, Richards Watson Gershon Susan Tebo, Principal, Impact Sciences Inc.

Tips for Preparing Joint CEQA/NEPA Documents

Nicole Hoeksma Gordon The Sohagi Law Group, PLC [email protected]

310-475-5700

PORTIONS OF SLIDES REPRINTED WITH PERMISSION BY ICF, INTERNATIONAL

When Does NEPA Apply?

A Project is subject to NEPA if it:

• • • • • Requires a

federal

permit or entitlement, or Is jointly carried out by a

federal

agency, or Will be

federally

funded, or Will occur on

federal

land, or Otherwise includes

federal

involvement

Why Integrate CEQA and NEPA?

• Allows for single document • Avoids duplication of effort • Avoids public confusion over environmental processes • Identifies conflicts/inconsistencies with any approved federal, state or local plan and laws • Creates consistency in addressing issues • Enhances collaborative planning

NEPA’s Integration Requirements

• Federal agencies shall cooperate with State and local agencies to the fullest extent possible for: – Joint planning processes – Joint environmental research and studies – Joint public hearings (except where otherwise provided by statute) – Joint environmental assessments – Joint environmental impact statements • Federal agency and State or local agency shall be joint lead agencies • Federal agencies shall cooperate in fulfilling state “EIS” requirements so that one document will comply with all applicable laws 40 CFR § 1506.2

CEQA’s Integration Requirements

• State and local agencies should cooperate with federal agencies to the fullest extent possible to prepare: – Joint planning processes – Joint environmental research and studies – Joint public hearings – Joint environmental documents • The Lead Agency should try to prepare a combined EIR/EIS or Neg Dec/FONSI • To avoid the need for the federal agency to prepare a separate document for the same project, the Lead Agency must involve the federal agency in the preparation of the joint document • Time limits for EIR and Neg Dec may be waived where project is subject to both CEQA and NEPA CEQA Guidelines §§ 15222, 15223, 15224, 15226

CEQA and NEPA as Parallel Processes

Exempt Negative Declaration Review for Exemptions Initial Study EIR Notice of Preparation Scoping C E Q A Draft EIR State Clearinghouse Public and Agency Review Preparation of Response to Comments Review of Response by Commenting Agencies Final EIR Agency Decision/ Findings, Statement of Overriding Consideration, Mitigation Monitoring Review for Exclusions Environmental Assessment EIS Excluded Finding of No Significant Impact Notice of Intent Scoping Draft EIS EPA Filing: Federal Register Public and Agency Review Final EIS EPA Filing; Federal Register Notice Agency Decision/ Record of Decision N E P A

CEQA/NEPA Terminology

CEQA Term

Lead Agency Responsible Agency Categorical Exemption Initial Study Negative Declaration Mitigated ND Environmental Impact Report Notice of Preparation Findings

Correlated NEPA Term

Lead Agency Cooperating Agency Categorical Exclusion Environmental Assessment Finding of No Significant Impact Finding of No Significant Impact Environmental Impact Statement Notice of Intent Record of Decision

CEQA/NEPA Terminology

(Cont.)

CEQA Term

Proposed Project Exceptions to Categorical Exemptions Project Objectives No-Project Alternative Environmental Setting Significant Impact Mitigation Program EIR

Correlated NEPA Term

Proposal for Action Extraordinary Circumstances limiting use of CatEx Project Purpose and Need No-Action Alternative Affected Environment Impact Environmental Commitments Programmatic EIS

Common Joint Documents • Joint EIR/EIS • Joint EIR/EA scope) (where NEPA has limited • Joint IS/EA FONSI) (leading to ND or MND and • Other Processes:

– EIR and separate EIS or EA or CE – IS and separate EIS or EA or CE – Categorical Exemption and CE

Keys to Preparing Joint Documents • Understand your partner lead agency:

– Agency specific NEPA regulations – Agency thresholds – Possible regional variability in implementation – Past practice – Effect of controversy/political influences – Lines of authority

• 4 C’s: commitment, communication, coordination, and collaboration

Common Issues in Joint Documents

• • • • • Scope of Analysis Baseline Alternatives Thresholds of Significance Mitigation

CEQA/NEPA Comparisons: Scope of Analysis

• CEQA requires scope of analysis to address expansive definition of proposed project, covering “whole of the action” • NEPA requires analysis of “connected actions” • NEPA allows limiting scope of analysis to address action related only to federal authority/nexus:

small federal handle

• • •

CEQA/NEPA Comparisons: Baseline

CEQA requires: – Baseline should “normally” be existing conditions at the time of the NOP [or when CEQA analysis begins] – “No project” alternative or future conditions should not be baseline (unless equal to existing conditions) NEPA requires: – NEPA requires description of “the environment of the area(s) to be affected or created by the alternatives” – No uniform rule as to baseline; NEPA guidance directs that No Action be a “benchmark…to compare the magnitude of environmental effects of the action alternatives” Joint Document should use CEQA baseline, if permitted by federal Lead Agency. Otherwise, two baselines may be required.

CEQA/NEPA Comparisons: Alternatives

• CEQA: Initial Study not required to discuss alternatives • CEQA allows an EIR to discuss alternatives at a lesser level of detail than the proposed project • NEPA: EA may have to discuss alternatives where there are “unresolved conflicts concerning alternative uses of available resources” • NEPA requires EIS to devote “substantial treatment” to each alternative

CEQA/NEPA Comparisons: Range of Alternatives

• CEQA requires: – Alternatives must: • Meet most of project objectives, • Avoid one or more potentially significant impact, and • Be potentially feasible • NEPA requires: – Alternatives must satisfy “purpose and need” – “Purposes” may include impact avoidance and feasibility factors • Joint Document should include a range of alternatives that meets both CEQA and NEPA factors

CEQA/NEPA Comparisons: Evaluation of Alternatives

• CEQA requires: – Evaluation of alternatives need not be as detailed as evaluation of the project’s impacts – Provide a meaningful comparison • NEPA requires: – Alternatives, including the “proposed action” must be evaluated in equal level of detail – Impacts of alternatives must be presented in comparative form • Joint Document should use NEPA’s “equal level of detail” approach because it is the stricter requirement

CEQA/NEPA Comparisons: Trigger to Prepare EIR vs. EIS • CEQA requires an EIR to be prepared where:

– It can be argued – Based on substantial evidence – In light of the entire record – That there is the potential for a significant impact • NEPA requires preparation of EIS if the federal agency does not have substantial evidence to support FONSI

CEQA/NEPA Comparisons: Threshold of “significance”

• CEQA: – Determinations of “significance” must be based on “substantial evidence”; established standards may be helpful – Agencies are encouraged to develop uniform thresholds • NEPA: – No mention of thresholds in CEQ NEPA regulations – “Significantly” defined by “context "and “intensity” – Most federal agencies do not use established thresholds • Joint Document should: – Rely on CEQA thresholds, if applicable – Explain “significance” in terms of “context” and “intensity” criteria

CEQA/NEPA Comparisons: Identifying “Significance”

• CEQA requires: – ND/MND – must identify the impact as “less-than-significant” (with or without mitigation) – EIR – “significance” of impacts must be identified as either “less than significant” or “significant” • NEPA requires: – EA – most agencies do not identify “significance” – FONSI – by definition, all impacts must be “less-than-significant” – EIS – most agencies do not identify “significance” (however see CEQ NEPA regs) • Joint Document should: – For CEQA - identify “significance” – For NEPA - may use CEQA conclusions if permitted by Lead Agency

CEQA/NEPA Comparisons: Mitigation

• CEQA requires agencies to avoid or mitigate significant impacts when feasible • CEQA requires mitigation as part of MND and EIR • NEPA requires mitigation for FONSIs to justify hard look and support for no significant impacts • EISs need only full and complete discussion of mitigation; no specific requirement to adopt all feasible mitigation (however, adoption mitigation) most federal agencies require of feasible

CEQA/NEPA Comparisons: Special Topics

• For certain large projects, CEQA requires a water supply assessment • No need to analyze economic impacts box retail) • CEQA requires unless economic effect could cause physical effect on environment (e.g., big no E.J. analysis • Climate change analysis required • NEPA does not require any special water supply analysis • Economic and social impact analysis can be included in EIS where interrelated with effects to human environment • Disproportionate impacts required as part of Environmental Justice analysis (EO 12898) • No finalized direction on climate change from CEQ

Recommendations: Use of MOU/MOA

• Federal and state or local lead agencies should memorialize their cooperation in a Memorandum of Understanding or Agreement that spells out: – Respective agency roles and responsibilities for document preparation – Steps in preparing the joint document – Scope and content – Whether of CEQA/NEPA document – Selection and contracting for consultants NEPA or CEQA standards of analysis and conclusions will be used for particular issues – How they will resolve disagreements – Joint meetings/hearings/notices – How joint document will be used by decision makers

Take Away Advice

• • • • Draft a thoughtful Memorandum of Understanding Identify agreed upon methodology for complying with CEQA and NEPA Describe CEQA/NEPA compliance in a separate chapter Fill in any “CEQA” holes in the NEPA analysis

Recent NEPA Developments from the Council on Environmental Quality (CEQ)

• • • • • • •

New CEQ Guidance on NEPA Mitigation and Monitoring

Validates the “Mitigated FONSI” as a legitimate tool under NEPA Sets forth three goals: 1. Proposed mitigation should be considered throughout the NEPA process 2. A monitoring program 3. Public should be created or strengthened to ensure mitigation measures are implemented and effective participation and accountability should be part of developing MMs Mitigation should be more detailed, specific and measurable Encourages mitigation to rely on principles of adaptive management Mitigation should be carried through to decision-making Emphasizes both “implementation” monitoring and “effectiveness” monitoring Suggests that failed mitigation may require preparation of supplemental NEPA document January 2011

• • • • New CEQ Guidance on Establishing Categorical Exclusions

Addresses the process for establishing a new CE Explains the role of public involvement and documentation in defining and substantiating a proposed CE Explains how to use a CE and what documentation is necessary to support it: – CEQ previously discouraged extensive documentation, but now encourages documentation if warranted – CEQ encourages public notification of CEs – Tiering okay, but any mitigation commitments developed during broader review must be presented as required design elements for CE qualification Suggests conducting periodic reviews of CEs to assure their continued usefulness November 2010

Draft CEQ Guidance on Consideration of Effects of Climate Change and GHG Emissions • • Covers both GHG emissions and climate change analysis For GHG Impacts

– Establishes a 25,000 metric ton CO 2 level for detailed analysis of GHG emissions (not a “threshold of significance”) – Encourages evaluation of “up-stream” and “down-stream” impacts and

“life-

cycle” impacts , but only those that are reasonably foreseeable – GHG impact analysis should rely on “rule of reason” – – Mitigation measures and alternatives should attempt to reduce GHG impacts NEPA documents should evaluate energy requirements and conservation potential – NEPA documents should analyze applicable federal, state and local GHG and energy conservation goals February 2010

Draft CEQ Guidance on Consideration of Effects of Climate Change and GHG Emissions • For impacts of climate change

– Reasonably foreseeable “future no action” can serve as a baseline (e.g., business as usual scenario) – Analyses should focus on vulnerable ecosystems and resources that are susceptible to climate change impacts in the affected area – Impact analysis should focus on long-term impacts likely to experience effects of climate change – NEPA documents should maximize “incorporation by reference” of existing descriptions and studies – Mitigation should be flexible and adaptive and focused on the long-term February 2010

NEPA Pilot Programs

• •

CEQ solicited nominations for pilot projects that demonstrate a more efficient approach to achieving NEPA’s goals from March 17 – June 15, 2011 CEQ will select five projects to track and evaluate whether they: – Simplify NEPA implementation practices – Reduce time and cost involved in preparing NEPA reviews – – Utilize information technology to improve efficiency Improve effectiveness of public engagement http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/nepa-pilot-project